Thursday, October 29, 2009
Hypocrite of the Day
Yesterday morning, while driving to a work, I saw a blue SmartCar with a "Save the Planet" bumper sticker on it. The kicker is that it was being pulled behind a giant, new RV. The RV had out of state tags. I am still trying to figure out how the RV helps with the whole "global warming" thing.
Wednesday, October 7, 2009
Become a Follower
If you like what you read on here, please become a follower of this blog. I moved the Follower widget to the top of the sidebar so it can be easily accessed. Just click on the "Follow" link and become more engaged with this site. Hopefully more of you will participate and we can have discussions that follow new posts.
The Constitutionality of ObamaCare
Many Americans are starting to question the Constitutionality of the proposed health care legislation. Journalists, opinion writers, and various other media personalities are beginning to examine these contentions and discuss or dispute the validity of the claims. As I discussed in a previous post about the conflict that may arise due to the right to privacy, much more analysis is necessary before any legislation becomes federal law.
One of the arguments claiming that ObamaCare is unconstitutional focuses upon a provision within the proposed legislation that mandates all Americans purchase health insurance or pay a tax as penalty (see page 167: HR 3200). Opponents to this feel that the federal government does not have the power to force citizens to purchase anything, regardless of whether someone within the government feels it is “good for you” or provides you with some benefit. It is a fundamental belief that individuals have the right to choose what to purchase, or not to purchase, and that the federal government is reaching far beyond its intended grasp. The argument is that our political system is one where the federal government is limited in authority only to the specific, enumerated powers listed within the text of the Constitution and that any further actions should be found void by the final arbiter of these disputes. That arbiter is the U.S. Supreme Court.
Supporters of the many variations of health care reform point to the Commerce Clause, the General Welfare Clause, and the Taxing Power as the constitutional authority to mandate that all citizens purchase health insurance (that is, when supporters actually consider these contentions and attempt to establish legitimacy to their preferred method of universal health insurance). These powers alone may not be able to justify the proposed federal action but taken together do present a stronger argument; although, as I will discuss, this specific mandate is distinguishable and presents serious constitutional questions.
Constitutional Clauses in Question
The Commerce Clause, the General Welfare Clause and the Taxing Power are all found within Article I, Section 8 of the U.S. Constitution.[1] The relevant provisions read as follows:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
“To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes”
Article I Section 8, Subsections 1 and 3, respectively (Emphasis mine). The language seems straight forward; however, the Courts have historically taken an extremely broad reading of these provisions and have thus expanded the power of the federal government.
Without getting into too much detail, the Commerce Clause was put into place for specific, limited situations. One was to regulate Commerce between any State in the USA and with foreign nations. This is straight forward enough. In order to promote conformity throughout the land, you need all States to trade similarly with foreign nations. Second, it was to regulate trade from States or the federal government with Native Americans. The land granted to the Native Americans was considered separate from the federal government and the States and was treated as such. Again, you want conformity when a State deals with an entity outside of the union. Finally, the Commerce Clause was meant to regulate commerce between the States. The justification lies in the desire to have conformity and because of the need to resolve disputes between States that wouldn’t result in a weakening of the nation.
From the time of our Nation’s founding until the Great Depression, the Commerce Clause tested the boundaries of federal power but failed to make any exceptional extensions of the power. In 1942, the Supreme Court heard the case of Wickard v. Filburn (317 U.S. 111). President Roosevelt had signed into law many pieces of legislation that were collectively known as the “New Deal.” These federal laws were meant to stabilize the decimated economy and create a safety net for citizens. One such statute, The Agricultural Adjustment Act of 1938, placed restrictions on wheat farmers and attempted to stabilize the price of wheat by controlling the amount of wheat that was ultimately grown and harvested.
Filburn used more land than the government allotted and harvested more wheat than the government allowed. However, Filburn used the excess amount of wheat for personal consumption in his home – it never went to market or entered the so-called “stream of commerce.” This argument was vigorously made to the Supreme Court, but it ultimately failed in a unanimous decision. The Court reasoned that Filburn’s consumption of the wheat he harvested should be regulated because of the cumulative effect it had on interstate commerce. Specifically, the Court stated that had he not grown and harvested excess wheat, he would have purchased it on the open market. This effect, when taken in the cumulative possibility of every farmer acting similarly, had a substantial impact on the economy. The Court concluded that this private behavior was now under the purview of federal regulations.[2] Many now feel that the Commerce Clause can be used to regulate any economic behavior, public or private.
The Taxing Power is much more straight forward. Essentially, the government is allowed to raise revenue by taxing the population. However, the taxation was only intended to be used to pay for the common defense or the general welfare. National security through military presence and force is easy enough to understand and does not present grounds for dispute.
The General Welfare Clause is another story. The meaning of this provision has been debated since its inception. James Madison, co-author of The Federalist Papers and one of the leading proponents of the Constitution and our Republic’s founding, did not read this clause liberally. In a letter to Rev. Frederick Beasley in 1825, Madison stated:
“With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
(Emphasis mine) Alexander Hamilton, another co-author of The Federalist Papers and a leading advocate for the Constitution, read the provision much more broadly and stated that it expanded federal power beyond that which was enumerated in the text. The Supreme Court did not hear a case on this clause until the 1930’s. Two cases were heard within a year of one another on the meaning of this constitutional provision. The cases, United States v. Butler (1936) and Helvering v. Davis (1937) had similar outcomes. The general holding was that the Welfare Clause is an expansive power, much like Hamilton’s perspective, and that Congress was able to determine what “the General Welfare” meant. The only real limitation placed upon Congress was that the legislation must be national or general, not local or limited issues. The Welfare Clause has lost much of its luster and power because of the growth of the Commerce Clause through the interpretation of the Courts.
Distinctions in Constitutional Text/Judicial Decisions and ObamaCare
With the basic understanding of the Constitution discussed, the focus can now shift to whether a requirement to purchase health insurance or pay a penalty is permitted action by the federal government. The supporters of ObamaCare can make some valid arguments as to the legitimacy of the proposed legislation within our Constitutional framework. These arguments, though, can be disposed of fairly quickly.
The Taxing Power is a means to collect revenue and by itself does not present any real issues as to the constitutionality of federal action. The caveat here is that the President, the Congress, and supporters of this, or a similar, plan unequivocally state, both in person and the text of the legislation, that the individual mandate is not a tax. If they stand firm in this position and do not treat the mandate as a tax, then this Constitutional provision is moot.
Likewise, the General Welfare clause, by itself, does not present an overly significant hurdle. It can be argued that universal health insurance is in the best interests of society and promotes the General Welfare of the population. However, the General Welfare clause must be read in conjunction with the Taxing provision. As we know, the Taxing power does not apply; this comes from the language of the proposals and from the proponents of the so-called health care reform. If the politicians pushing this legislation take the politically unpalatable position of calling the mandate a tax (thereby causing the President to break a campaign pledge less than 9 months into his first term), then a host of other issues will arise and require further review.
What then remains as evidence of the constitutionality of such federal action is the Commerce Clause. However, there is one major distinction present in the current debate that has yet to exist in previous jurisprudence. Namely, the legislation, and the accompanying mandate to purchase health insurance, is an attempt to regulate the individual. Remember that the Commerce Clause specifically states that it is meant “[t]o regulate Commerce[.]” There is no mention of regulating citizens nor has any Court decision I know of stated such.
Previous judicial interpretations have only gone so far as to regulate economic activity. Granted, Wickard v. Filburn did regulate the economic behavior of an individual. However, it did so in the context of controlling his commercial activity (the farmer grew and used his own wheat instead of purchasing it on the open market). In the case of ObamaCare, individuals will be required to purchase health insurance. They will, for all intents and purposes, be treated as some sort of commerce and not as a person participating in commerce.
This distinction is important. Our legal system has never accepted an interpretation of the Constitution that states that the individual can be regulated as commerce. A judicial decision making this leap and the break from legal precedent would be an exceptional extension of the understanding of this provision. The potential for abuse here is another factor that would require consideration as future politicians could expand the behavior to be regulated almost infinitely. This argument is commonly known as the “slippery slope,” meaning that once you start down a hill, you can quickly fall all the way to the bottom. This would most likely further tilt the playing field against validating this concept. Therefore, it is highly unlikely that a majority of Supreme Court justices would support the notion that people are commerce and under the purview of the Commerce Clause.
One final note, a strong case can be made that this discussion is irrelevant and that an individual mandate is really just a Bill of Attainder, which is specifically prohibited in Article I, Section 9, Subsection 3 of the Constitution.
This is a legislative concept that stems from English law and was specifically singled out by our Founders. A Bill of Attainder is a congressional action penalizing individuals for certain behavior without allowing them a chance to defend themselves in a court of law. Requiring individuals to purchase health insurance or pay a penalty to the federal government fits squarely within the recognized definition of this type of action; there is no process for allowing the individual to file a legal action and make a case against not choosing to spend money on something he does not desire. The outcome is that the legislature commands that you spend money on health insurance or give money to the government for health insurance without a chance to defend yourself and legally justify your decision.
Essentially, our Constitution refuses to acknowledge this type of statute and states that no one can be punished for behavior without due process of law and the full protections of the judiciary. This is another example of the separation of powers that were incorporated into our governmental framework to ensure maximum protection of the individual’s natural rights. It is also a legitimate threat to the individual mandate and something that must be addressed before any legislation is passed into law.
[1] Article I regulates the behavior of the federal legislature.
[2] Former Chief Justice of the Supreme Court William Rehnquist called this a “doctrinal change” and discussed the vast expansion of the Court’s interpretation in US v. Lopez.
One of the arguments claiming that ObamaCare is unconstitutional focuses upon a provision within the proposed legislation that mandates all Americans purchase health insurance or pay a tax as penalty (see page 167: HR 3200). Opponents to this feel that the federal government does not have the power to force citizens to purchase anything, regardless of whether someone within the government feels it is “good for you” or provides you with some benefit. It is a fundamental belief that individuals have the right to choose what to purchase, or not to purchase, and that the federal government is reaching far beyond its intended grasp. The argument is that our political system is one where the federal government is limited in authority only to the specific, enumerated powers listed within the text of the Constitution and that any further actions should be found void by the final arbiter of these disputes. That arbiter is the U.S. Supreme Court.
Supporters of the many variations of health care reform point to the Commerce Clause, the General Welfare Clause, and the Taxing Power as the constitutional authority to mandate that all citizens purchase health insurance (that is, when supporters actually consider these contentions and attempt to establish legitimacy to their preferred method of universal health insurance). These powers alone may not be able to justify the proposed federal action but taken together do present a stronger argument; although, as I will discuss, this specific mandate is distinguishable and presents serious constitutional questions.
Constitutional Clauses in Question
The Commerce Clause, the General Welfare Clause and the Taxing Power are all found within Article I, Section 8 of the U.S. Constitution.[1] The relevant provisions read as follows:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
“To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes”
Article I Section 8, Subsections 1 and 3, respectively (Emphasis mine). The language seems straight forward; however, the Courts have historically taken an extremely broad reading of these provisions and have thus expanded the power of the federal government.
Without getting into too much detail, the Commerce Clause was put into place for specific, limited situations. One was to regulate Commerce between any State in the USA and with foreign nations. This is straight forward enough. In order to promote conformity throughout the land, you need all States to trade similarly with foreign nations. Second, it was to regulate trade from States or the federal government with Native Americans. The land granted to the Native Americans was considered separate from the federal government and the States and was treated as such. Again, you want conformity when a State deals with an entity outside of the union. Finally, the Commerce Clause was meant to regulate commerce between the States. The justification lies in the desire to have conformity and because of the need to resolve disputes between States that wouldn’t result in a weakening of the nation.
From the time of our Nation’s founding until the Great Depression, the Commerce Clause tested the boundaries of federal power but failed to make any exceptional extensions of the power. In 1942, the Supreme Court heard the case of Wickard v. Filburn (317 U.S. 111). President Roosevelt had signed into law many pieces of legislation that were collectively known as the “New Deal.” These federal laws were meant to stabilize the decimated economy and create a safety net for citizens. One such statute, The Agricultural Adjustment Act of 1938, placed restrictions on wheat farmers and attempted to stabilize the price of wheat by controlling the amount of wheat that was ultimately grown and harvested.
Filburn used more land than the government allotted and harvested more wheat than the government allowed. However, Filburn used the excess amount of wheat for personal consumption in his home – it never went to market or entered the so-called “stream of commerce.” This argument was vigorously made to the Supreme Court, but it ultimately failed in a unanimous decision. The Court reasoned that Filburn’s consumption of the wheat he harvested should be regulated because of the cumulative effect it had on interstate commerce. Specifically, the Court stated that had he not grown and harvested excess wheat, he would have purchased it on the open market. This effect, when taken in the cumulative possibility of every farmer acting similarly, had a substantial impact on the economy. The Court concluded that this private behavior was now under the purview of federal regulations.[2] Many now feel that the Commerce Clause can be used to regulate any economic behavior, public or private.
The Taxing Power is much more straight forward. Essentially, the government is allowed to raise revenue by taxing the population. However, the taxation was only intended to be used to pay for the common defense or the general welfare. National security through military presence and force is easy enough to understand and does not present grounds for dispute.
The General Welfare Clause is another story. The meaning of this provision has been debated since its inception. James Madison, co-author of The Federalist Papers and one of the leading proponents of the Constitution and our Republic’s founding, did not read this clause liberally. In a letter to Rev. Frederick Beasley in 1825, Madison stated:
“With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
(Emphasis mine) Alexander Hamilton, another co-author of The Federalist Papers and a leading advocate for the Constitution, read the provision much more broadly and stated that it expanded federal power beyond that which was enumerated in the text. The Supreme Court did not hear a case on this clause until the 1930’s. Two cases were heard within a year of one another on the meaning of this constitutional provision. The cases, United States v. Butler (1936) and Helvering v. Davis (1937) had similar outcomes. The general holding was that the Welfare Clause is an expansive power, much like Hamilton’s perspective, and that Congress was able to determine what “the General Welfare” meant. The only real limitation placed upon Congress was that the legislation must be national or general, not local or limited issues. The Welfare Clause has lost much of its luster and power because of the growth of the Commerce Clause through the interpretation of the Courts.
Distinctions in Constitutional Text/Judicial Decisions and ObamaCare
With the basic understanding of the Constitution discussed, the focus can now shift to whether a requirement to purchase health insurance or pay a penalty is permitted action by the federal government. The supporters of ObamaCare can make some valid arguments as to the legitimacy of the proposed legislation within our Constitutional framework. These arguments, though, can be disposed of fairly quickly.
The Taxing Power is a means to collect revenue and by itself does not present any real issues as to the constitutionality of federal action. The caveat here is that the President, the Congress, and supporters of this, or a similar, plan unequivocally state, both in person and the text of the legislation, that the individual mandate is not a tax. If they stand firm in this position and do not treat the mandate as a tax, then this Constitutional provision is moot.
Likewise, the General Welfare clause, by itself, does not present an overly significant hurdle. It can be argued that universal health insurance is in the best interests of society and promotes the General Welfare of the population. However, the General Welfare clause must be read in conjunction with the Taxing provision. As we know, the Taxing power does not apply; this comes from the language of the proposals and from the proponents of the so-called health care reform. If the politicians pushing this legislation take the politically unpalatable position of calling the mandate a tax (thereby causing the President to break a campaign pledge less than 9 months into his first term), then a host of other issues will arise and require further review.
What then remains as evidence of the constitutionality of such federal action is the Commerce Clause. However, there is one major distinction present in the current debate that has yet to exist in previous jurisprudence. Namely, the legislation, and the accompanying mandate to purchase health insurance, is an attempt to regulate the individual. Remember that the Commerce Clause specifically states that it is meant “[t]o regulate Commerce[.]” There is no mention of regulating citizens nor has any Court decision I know of stated such.
Previous judicial interpretations have only gone so far as to regulate economic activity. Granted, Wickard v. Filburn did regulate the economic behavior of an individual. However, it did so in the context of controlling his commercial activity (the farmer grew and used his own wheat instead of purchasing it on the open market). In the case of ObamaCare, individuals will be required to purchase health insurance. They will, for all intents and purposes, be treated as some sort of commerce and not as a person participating in commerce.
This distinction is important. Our legal system has never accepted an interpretation of the Constitution that states that the individual can be regulated as commerce. A judicial decision making this leap and the break from legal precedent would be an exceptional extension of the understanding of this provision. The potential for abuse here is another factor that would require consideration as future politicians could expand the behavior to be regulated almost infinitely. This argument is commonly known as the “slippery slope,” meaning that once you start down a hill, you can quickly fall all the way to the bottom. This would most likely further tilt the playing field against validating this concept. Therefore, it is highly unlikely that a majority of Supreme Court justices would support the notion that people are commerce and under the purview of the Commerce Clause.
One final note, a strong case can be made that this discussion is irrelevant and that an individual mandate is really just a Bill of Attainder, which is specifically prohibited in Article I, Section 9, Subsection 3 of the Constitution.
This is a legislative concept that stems from English law and was specifically singled out by our Founders. A Bill of Attainder is a congressional action penalizing individuals for certain behavior without allowing them a chance to defend themselves in a court of law. Requiring individuals to purchase health insurance or pay a penalty to the federal government fits squarely within the recognized definition of this type of action; there is no process for allowing the individual to file a legal action and make a case against not choosing to spend money on something he does not desire. The outcome is that the legislature commands that you spend money on health insurance or give money to the government for health insurance without a chance to defend yourself and legally justify your decision.
Essentially, our Constitution refuses to acknowledge this type of statute and states that no one can be punished for behavior without due process of law and the full protections of the judiciary. This is another example of the separation of powers that were incorporated into our governmental framework to ensure maximum protection of the individual’s natural rights. It is also a legitimate threat to the individual mandate and something that must be addressed before any legislation is passed into law.
[1] Article I regulates the behavior of the federal legislature.
[2] Former Chief Justice of the Supreme Court William Rehnquist called this a “doctrinal change” and discussed the vast expansion of the Court’s interpretation in US v. Lopez.
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